Her Majesty the Queen - v. -, 2021 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 28 Date: April 16, 2021 Information: 991098008 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Steven Jaret Veilleux Ms. Kristen Hubbard For the Crown Ms. Jessie Buydens For the Accused INTERIM DECISION ON CHARTER APPLICATION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] On July 21, 2019, members of the Prince Albert Police Service responded to an alarm call to a commercial business located on the southern edge of the city. The business sold recreational vehicles.

The accused was observed in a vehicle parked on a dirt road behind the business when officers arrived. The accused was detained and a sawed-off shotgun together with ammunition was located in a duffle bag found in the vehicle. As a result, Mr. Veilleux stands charged with various offences, all arising out of his alleged possession and control of the firearm and ammunition. When the investigation was concluded, no evidence of forced entry or theft was identified at the business.

[ 2 ] Mr. Veilleux alleges that his Charter rights were breached by the officers when they searched the vehicle he was operating on July 21, 2019. Mr. Veilleux asks this court to exclude the evidence obtained by means of that search, namely the sawed-off shotgun and concomitant ammunition. The trial commenced on March 11, 2021. A voir dire was utilized to hear the evidence relevant to Mr. Veilleux’s alleged Charter breach. Mr. Veilleux seeks a ruling on his application prior to the continuation of the trial. [ 3 ] For the reasons that follow, I find that Mr.

Veilleux’s right to be secure from unreasonable search and seizure was breached when Cst. Benitez reached into the car and removed the duffle bag to search it. While I have found that a breach of Mr. Veilleux’s Charter rights occurred, I find that I am unable to conclude a s.24(2) analysis because another possible breach has come to my attention – a breach not addressed by counsel – namely, a potential breach of Mr. Veilleux’s right to counsel. I require further submissions from counsel respecting this issue before I may conclude my analysis. THE EVIDENCE [ 4 ] The trial began on March 11, 2021.

The Crown called two witnesses, being Constable Elvin Benitez and Constable Tyler Ryhorchuk. In addition, an agreed statement of facts was filed with the Court. Finally, Mr. Veilleux testified on his own behalf. [ 5 ] The facts are largely not in dispute except in a few respects, which I will address as I recount the evidence. [ 6 ] Constables Benitez and Ryhorchuk are both members of the Prince Albert Police Service. On July 21, 2019, they were both on duty and operating police vehicles in the City of Prince Albert. At the time, Cst. Benitez had approximately 2 years of experience as a peace officer – Cst.

Ryhorchuk had approximately 9 years of experience. [ 7 ] On July 21, 2019 at 5:20 p.m., the Prince Albert Police Service received a call from an alarm-monitoring company indicating that an alarm had been activated in the compound of a commercial business known as Tru-North RV [Tru-North]. Tru-North is a branded dealership that sells recreational vehicles and accessories. The business premise is located on the southern edge of the city and surrounded by a fence creating a compound in which recreational vehicles are stored.

The property fronts on a major thoroughfare and is adjacent to another developed commercial property. Immediately behind these businesses is undeveloped farmland. There is a road allowance (4 th Avenue W.) between the business properties. In other areas of the city, 4 th Avenue West is a developed city street. However, in this area, it is an undeveloped dirt road that provides perimeter access to the adjacent commercial properties, including Tru- North. [ 8 ] Several officers responded to the alarm call at Tru-North and arrived within minutes of being dispatched. Upon arriving at the scene, Cst.

Benitez had a brief conversation with a security guard in the area. The guard directed Cst. Benitez to a vehicle parked on the service road on the west side of the compound. Cst. Benitez drove around and observed a Mitsubishi Lancer parked in the location described by the security guard. The vehicle was parked in the middle of the road and was parked adjacent to the property the officers were investigating. Cst. Benitez testified that he found it odd that a vehicle was parked at this location because it was not much of a road.

It was narrow and largely untravelled except to provide service access to the adjacent businesses. Furthermore, it was Sunday and all the adjacent businesses were closed. Cst. Benitez testified that he was suspicious of the vehicle and wanted to investigate the situation further. [ 9 ] Cst. Benitez drove up to the vehicle and activated his police lights. He then exited the police vehicle and walked to the driver’s door. Mr. Veilleux was in the driver’s seat. No passengers were present, and no other vehicles were in the area. Cst. Benitez testified that he informed Mr.

Veilleux that the police had been dispatched to the area because they had received an alarm call from an adjacent business. The officer then asked Mr. Veilleux what he was doing there. Mr. Veilleux told the officer that he had been on the phone. Cst. Benitez testified that Mr. Veilleux became nervous – that he began sweating and fidgeting - when the officer asked him who he was talking to. Cst. Benitez did not observe Mr. Veilleux on the phone when he approached the car. Cst. Benitez testified that he told Mr. Veilleux that he found it odd that Mr.

Veilleux was parked on a dirt road adjacent to the business from which the alarm call had come. [ 10 ] When Mr. Veilleux testified, he said that he was on his phone talking to his mechanic about a mechanical problem with the vehicle he was driving when the officer drove up. During his testimony, Mr. Veilleux did not give the name of his mechanic or say what the mechanical problem was. Mr. Veilleux testified that the officer must have seen him on the phone because the first thing the officer did when he approached the vehicle was to ask him to hang up the phone.

[ 11 ] In my opinion, Mr. Veilleux’s explanation of why he was stopped is unbelievable – it does not conform with either reason or common sense. While it is logical (in fact necessary) for a person to stop their vehicle if they wish to talk on the phone, it is improbable that Mr. Veilleux or anyone else would choose that particular location to stop and talk on the phone about a mechanical problem with their car. The road that Mr. Veilleux chose to travel on that day does not go anywhere other than the rear of a closed business. If he merely stopped his vehicle in response to a phone call, why was Mr.

Veilleux driving on that particular road? On the other hand, if Mr. Veilleux was travelling on another road and was merely looking for a safe place to stop his vehicle and have a conversation with his mechanic, why would he drive down an undeveloped, dirt road on the edge of the city if he are having mechanical problems with his car? Mr. Veilleux’s explanation has the hallmarks of fabrication. It is predicated on superficial logic but does not withstand scrutiny. I do not accept that Mr. Veilleux was on the phone talking to his mechanic when Cst. Benitez approached his vehicle. [ 12 ] While talking to Mr.

Veilleux, Cst. Benitez observed a number of small tools, including pliers and screwdrivers, visible on the seat of the car. The officer was of the view that these tools could be useful for breaking and entering. As a result, Cst. Benitez asked Mr. Veilleux what he did for a living. Cst. Benitez’s suspicions were elevated when Mr. Veilleux told the officer he was not working. Cst. Benitez asked Mr. Veilleux what the tools were for. Mr. Veilleux answered the officer by saying that the vehicle did not belong to him – that it belonged to his wife. Cst. Benitez testified that Mr.

Veilleux became more nervous and agitated the longer they spoke. [ 13 ] At this point, the officer decided to detain Mr. Veilleux for purposes of investigating his potential involvement with the alarm call at the adjacent business. Cst. Benitez testified that Mr.

Veilleux’s close proximity to the business, coupled with the fact he was parked on a road seldom used by vehicles or pedestrians, coupled with the fact he was driving a vehicle containing instruments potentially suitable for breaking and entering, together with his vague explanation of what he was doing and why he was there, was the basis for the officer’s suspicion that Mr. Veilleux might have some involvement with the alarm call. Cst. Benitez testified that he informed Mr. Veilleux he was being detained. In his testimony, Mr.

Veilleux confirmed that the officer explained that he was investigating a robbery and that the officer told Mr. Veilleux that his presence in the area was suspicious. In his testimony, he did not recall the officer using the word “detained”. However, Mr. Veilleux understood that he was not free to drive away at that point. [ 14 ] Cst. Benitez testified that he observed a medium-sized duffle bag (bigger than a gym bag but smaller than a hockey bag) on the floor behind the driver’s seat. Simply put, the officer suspected that Mr.

Veilleux may have been involved with the alarm call at the adjacent business and suspected (had a gut feeling) that the duffle bag may contain evidence. The officer candidly admitted that there was nothing about the exterior appearance of the bag that connected it to his investigation. Rather, the officer’s concern was that something might be hidden inside it. [ 15 ] Cst. Benitez asked Mr. Veilleux who owned the duffle bag and if he could look inside it. The officer testified that Mr. Veilleux said “yah – sure go ahead .. but I don’t know who owns that duffle bag … this is my wife’s car” or words to that effect.

Cst. Benitez testified that he repeated his question by saying “Are you sure this isn’t your duffle bag?” “Are you sure I can’t look inside it?”. The officer testified that he received Mr. Veilleux’s verbal consent to look in the duffle bag. However, in granting his consent, Mr. Veilleux denied that anything in the car was his. Cst. Benitez testified that he asked Mr. Veilleux three times who owned the duffle bag and if he could look inside it. Cst. Ryhorchuk also asked Mr. Veilleux who owned the duffle bag. Both officers testified that Mr.

Veilleux answered them by repeating the statement that the car belonged to his wife. Cst. Benitez testified as to his belief that Mr. Veilleux did provide consent for him to look in the duffle bag during their exchange. The officer testified that, if he had not received Mr. Veilleux’s consent, he would not have looked inside the duffle bag. [ 16 ] In his testimony, Mr. Veilleux described this exchange differently. While he could not remember the precise words the officer used, Mr. Veilleux said the officer asked to search the vehicle – not just the duffle bag. Mr.

Veilleux did not recall the officer asking to search anything specific in the vehicle, such as the duffle bag. Rather, he believes the request was to search the vehicle. In cross- examination, Mr. Veilleux acknowledged that the first thing Cst. Benitez did was search the duffle bag. Mr. Veilleux said he told the officer he could not give his consent to search the vehicle because it did not belong to him. Mr. Veilleux testified that the vehicle belonged to his wife and he understood only the owner could consent to a search. Mr.

Veilleux said that the officer kept pressuring him and he kept saying that he could not give consent because it wasn’t his car. [ 17 ] Mr. Veilleux testified that he was aware there was a duffle bag in the car, together with miscellaneous tools, including wrenches, vice grips and screwdrivers. He said the officer did not advise him that he had the right to speak to a lawyer prior to the officer asking to search the car. Mr. Veilleux also said the officer did not tell him he had the right to refuse the request to search the car. Mr.

Veilleux testified that, while he did not believe he could give the officer consent to search his wife’s car, he also did not believe that he could refuse the officer’s request. As Mr. Veilleux put it, “I’ve had run ins with the law before .. and its proven to be on the opposite side. So I try to tell them what I can and can’t do and they tell me otherwise.” When asked, Mr. Veilleux said that he did not give his consent to search the car or the duffle bag. [ 18 ] Cst. Ryhorchuk arrived at the scene near the end of the conversation between Cst. Benitez and Mr. Veilleux. Cst. Ryhorchuk

approached the driver’s door of the car. Mr. Veilleux was in the driver seat and Cst. Benitez was standing nearby. Cst. Ryhorchuk testified that he did not hear the conversation between Cst. Benitez and Mr. Veilleux but did see Cst. Benitez reach through the back window, remove the duffle bag and then open it. [ 19 ] Cst. Benitez testified that he reached into the car, removed the duffle bag, and opened the zipper. He said it was full of what appeared to be men’s clothing. Once the officer opened the bag, he observed a sawed-off shotgun on top of the clothes. Cst. Benitez announced that he had found a firearm.

Cst. Ryhorchuk then advised Mr. Veilleux that he was under arrest for possession of a firearm, asked him to step out of the vehicle, and advised him of his right to counsel. He was also provided with the standard police caution. When the duffle bag was further searched, five rounds of ammunition for the shotgun was located. Cst. Benitez estimated that from the time he first approached Mr. Veilleux until the time he was arrested by Cst. Ryhorchuk was between 10 and 15 minutes. [ 20 ] In cross-examination, Cst. Benitez acknowledged that he had no dealings with Mr. Veilleux prior to July 21, 2019.

The officer also acknowledged that he did not know how long Mr. Veilleux’s vehicle had been parked at the location where he observed it. The officer did not know the specific nature of the alarm call that came in from Tru-North. However, when other officers concluded their investigation, no damage to the compound was observed and no loss of property was identified. While Mr. Veilleux was advised of his right to counsel by Cst. Ryhorchuck when he was arrested, Cst. Benitez did not advise him of that right before asking for his permission to search the duffle bag.

In cross-examination, the officer also acknowledged that he did not tell Mr. Veilleux that he had the right to refuse the officer’s request to look inside the duffle bag. [ 21 ] After he was arrested, Cst. Benitez ran a check and determined that the vehicle Mr. Veilleux was driving was registered in his wife’s name. In cross-examination, Cst. Benitez testified that he did not attempt to get the registered owner’s consent prior to searching the vehicle. Finally, Cst. Benitez noted that no wallet or identification was found inside the duffle bag.

Finally, there is no dispute that the shotgun was a firearm within the meaning of the Criminal Code , that it was operable, that it was not locked or secured, and that it had been modified by shortening both the stock and the barrel. ANALYSIS [ 22 ] Mr. Veilleux takes the position that his right to be secure against unreasonable search and seizure as protected by s.8 of the Canadian Charter of Rights and Freedoms [ Charter ] was breached when Cst. Benitez searched the car. Mr.

Veilleux asserts that his detention was arbitrary, that he had a privacy interest in the vehicle he was driving, and that the search of the car was unreasonable. Mr. Veilleux argues that he did not consent to the search of the car, and, if he did consent, any consent he provided was invalid. In the event the Court finds a breach of his Charter -protected rights, Mr. Veilleux argues that the evidence obtained ought to be excluded upon a Grant analysis. See: R v Grant , 2009 SCC 32 , 245 CCC (3d) 1 [ Grant ]. [ 23 ] The Crown takes the position that, because Mr.

Veilleux disavowed any association with the contents of the car, including the duffle bag, he cannot now claim that his privacy interests were breached when that bag was searched. In the event that there was a breach of Mr. Veilleux’s privacy interests, the Crown takes the position that the breach was relatively minor and the evidence of the firearm and ammunition is too important to be excluded. [ 24 ] To evaluate Mr. Veilleux’s Charter application, I must answer the following questions: 1. Was Mr. Veilleux lawfully detained? 2. Did Mr. Veilleux provide some form of consent to Cst. Benitez? 3. Was Mr.

Veilleux’s consent valid? 4. Was there a breach of s.8 of the Charter ? 5. In the event of a Charter breach, what remedy, if any, ought to be granted? The Law Respecting Detention, Search and Consent : [ 25 ] Asking questions of people is an important part of general police duties. In the course of investigating an offence, officers will often seek to obtain information from both witnesses and suspects - persons whom they believe may have been involved with a crime.

There is no express law providing police with authority to talk to people. Rather, they may - as may any citizen - speak with anyone theywant. Correspondingly, the persons to whom they speak may decide whether or not to provide information. However, the situationchanges when the police assert some form of constraint against the person with whom they are speaking. Constraint may take manyforms. A wide variety of common law and legislative provisions permit police officers to exercise some measure of constraint onindividuals. On July 21, 2019, Mr.

Veilleux was detained for investigative purposes - this is a form of constraint recognized at commonlaw. See: R v Mann, 2004 SCC 52, [2004] 3 SCR 59 [Mann]. [26] It should be noted that, while Mr. Veilleux was driving a car at the time, this was not a traffic stop. While Cst. Benitez askedMr. Veilleux his name and they discussed who owned the car, his desire to search the duffle bag did not find its origin in The TrafficSafety Act, SS 2004, c.T-18.1. The nature of Cst. Benitez’s interaction with Mr. Veilleux began as conversation but then transitioned intoa police investigation. As this transition occurred, Cst.

Benitez began exercising the authority police officers have at common law toconduct investigations. He was not exercising the statutory authority that the police have to monitor traffic safety. [27] In Mann, the Supreme Court of Canada recognized that the police have a common law power to briefly detain anyone forinvestigative purposes, as long as the officer has a reasonable suspicion that the individual has some connection to a particular crime, andprovided the detention is necessary under the circumstances, and provided the officer conducts themselves in a reasonable manner. SeeMann at paras. 36 and 45.

Prior to Mann there was some dispute as to whether or not police had any authority short of arrest. Inrecognizing the existence of a common law authority to detain for investigative purposes, the Court noted that police have only limitedauthority during an investigative detention and this authority falls short of the authority available to an officer when an individual isarrested. See: Mann at para. 37. For example, an investigative detention does not impose an obligation on the detained person to answerquestions posed by an officer.

Other forms of detention, such as a traffic stop, may impose an obligation to answer certain questions.However, a common law investigative detention does not impose any obligation on the detained person to answer any questions. [28] There are other limits on police authority during an investigative detention. For example, a police officer does not haveauthority to conduct a search for evidence. All warrantless searches are presumed to be unreasonable unless they can be justifiedpursuant to the test established in R v Collins, (SCC), [1987] 1 SCR 265 [Collins].

However, during a common lawinvestigative detention, the only justification for a search that has been found to be reasonable pursuant to the Collins test is for officersafety or the safety of others. See: Mann at para. 43. Safety searches must be relatively non-intrusive and short in duration. A pat-downis an example of a common protective search. In the present case, the Crown did not assert that Cst. Benitez removed the duffle bagfrom Mr. Veilleux’s car and opened it because he was concerned for his safety or the safety of others.

Rather, the officer suspected –largely on a hunch – that evidence may be discovered in that bag linking Mr. Veilleux to the alarm he was investigating. I infer that Cst.Benitez was aware of the limits of his authority based on his attempt to obtain consent from Mr. Veilleux prior to conducting his searchof the duffle bag. In his testimony, the officer acknowledged that he would not have opened the bag had Mr. Veilleux not consented. [29] A consent search is lawful – even if based on nothing more than a hunch.

Simply put, a person who consents to a police actionwaives any redress from the resulting intrusion on his/her liberties - provided the consent was valid. To be valid consent, there must be aclear indication from the officer seeking such consent that the person has a choice. See: R v Dedman, (SCC), [1985] 2SCR 2 at para 59. This usually occurs in the form of a caution from the police officer indicating that the person is free to refuse. Becauseconsent to police authority is a form of waiver, it is narrowly construed by the Court.

Interactions with police are inherently intimidatingand the mere acquiescence or compliance with a police directive should not be equated with consent. Individuals must have a real choicein providing purported consent. Was Mr. Veilleux lawfully detained? [30] I find that Mr. Veilleux was lawfully detained for an investigative purpose on July 21, 2019 by Cst. Benitez. The officer hadreasonable grounds to suspect that Mr. Veilleux may have been involved in the alarm call that he was investigating at the adjacentproperty. I am satisfied that many factors would have reasonably signaled to the officer that Mr.

Veilleux was a person of interest to hisinvestigation. These factors would have included the fact that he was parked in a car immediately adjacent to the subject property (whichwere closed), the fact the road was undeveloped and not frequently travelled by either vehicles or pedestrians except for the purpose ofaccessing the subject property, and the fact that tools capable of being used to break into and enter a fenced compound were visible inplain sight in Mr. Veilleux’s car, together with his nervous demeanor in response to the officer’s questions. Furthermore, Mr.

Veilleux’stemporary detention was necessary for the officer’s investigation. Finally, I find that Cst. Benitez conducted himself reasonably indetaining Mr. Veilleux. The officer was transparent as to the nature of his investigation and the reason for Mr. Veilleux’s detention. Thefacts do not support Mr. Veilleux’s assertion that he was arbitrarily detained. Did Mr. Veilleux provide the officer with some form of consent to search? [31] I find on the balance of probabilities that Mr. Veilleux provided ostensible consent to Cst. Benitez to search the duffle bag. I

accept Cst. Benitez’s testimony that Mr. Veilleux said words to the effect “yeah, sure go ahead” when he asked to look inside the duffle bag. However, I also find that Mr. Veilleux qualified his words by denying any connection to the duffle bag (or anything else in the car). Although Cst. Benitez and Mr. Veilleux recall the conversation differently, I find the two versions reconcilable. Where the versions conflict, I find Cst. Benitez’s description more reliable. Although the officer’s description of the conversation was vague, the thesis of his narration is more logical than that provided by Mr.

Veilleux. [ 32 ] It is helpful to examine the two narratives in context. Mr. Veilleux testified that his car was a small hatchback. Cst. Benitez testified that he looked inside the car and could see its contents largely in plain sight (except for what was in the duffle bag). The officer testified that he did not ask for permission to search the whole car – presumably because he could see its contents by looking through the windows – he wanted to look inside the duffle bag. The officer’s two questions conform logically to that fact situation - Whose duffle bag is it? Can I look inside it? Cst.

Benitez described Mr. Veilleux as having replied with words to the effect of “yeah, sure, go ahead … I don’t know who’s duffle bag it is .. it’s my wife’s car”. Mr. Veilleux testified that he told the officers (repeatedly) that the car belonged to his wife. Cst. Ryhorchuk also confirmed Mr. Veilleux saying words to that effect. [ 33 ] I find little significance in the fact that Cst. Benitez and Mr. Veilleux remember the conversation differently – people often remember the same conversations differently. People tend to remember with more precision those aspects of a conversation that are more important to them.

Cst. Benitez wanted consent to search the duffle bag and he remembers that aspect of the conversation with more clarity. Mr. Veilleux wanted the officers to know that he was disassociating himself from the contents of his wife’s car and he remembers that aspect of the conversation with more clarity. Having considered the whole of the evidence, I find that Mr. Veilleux did provide consent for Cst. Benitez to look inside the duffle bag by saying words to the effect of “yeah, sure, go ahead”. Was the consent provided by Mr.

Veilleux valid ? [ 34 ] Having considered the circumstances, I do not find the consent that Cst. Benitez received was valid. Although the officer explained why he wanted to search the duffle bag – because he was investigating a potential break and enter and because the officer found Mr. Veilleux’s presence suspicious – the officer did not expressly advise Mr. Veilleux that he had the right to decline that request. Under the circumstances, it is not likely that Mr. Veilleux would have understood that he could decline the officer’s request.

The fact the officer asked three times for permission does not assist the Crown. The officer intended to and did detain Mr. Veilleux for an investigative purpose. Mr. Veilleux understood that there had been an alarm call at an adjacent business and the police wanted to look for evidence in a duffle bag in the car he was driving. However, without an express caution from Cst. Benitez, I find it improbable that Mr. Veilleux would have understood that he had the right to decline the officer’s request. It is not enough for the Crown to establish that Mr. Veilleux said “yeah, sure, go ahead”.

To rely on waiver, the Crown must establish that Mr. Veilleux understood both the reason for the search and his right to refuse. While the Crown has established the former, it has not established the latter. Was there a breach of s.8 of the Charter ? [ 35 ] The Crown argues that, because Mr. Veilleux disavowed any ownership of or connection to the duffle bag during his interaction with the officers, he cannot now claim that his privacy interests were breached because that bag was searched.

In support of this position, the Crown relies upon the decisions of the Ontario Court of Appeal in R v B.(L.) , 2007 ONCA 596 , 227 CCC (3d) 70 [ B. (L.) ], and R v Nesbeth , 2008 ONCA 579 , 238 CCC (3d) 567 [ Nesbeth ]. [ 36 ] In B.(L.) , police officers saw two youths who appeared to be together sitting on school grounds. One of the officers called out “Toronto Police”. LB, who was holding a black bag, approached one of the officers without having been directed to do so. The officer spoke to LB and obtained his name and date of birth which he checked on the police CPIC system.

As he was doing this the officer noticed that LB was no longer holding a bag. A second officer located the bag on the grass near some litter and asked if it belonged to either of the youths. They said it did not. The officer then searched the bag which contained a loaded handgun. The trial judge found that the youths were detained in violation of s.9 when the officer asked about the bag and the officer’s search of the bag infringed LB’s s.8 Charter rights.

In overturning this decision, the Ontario Court of Appeal found that by telling the officer that he did not know who owned the bag, LB disclaimed any privacy interest in the bag and thus could not subsequently rely on s.8 Charter protections. See: B. (L.) at para. 71 . [ 37 ] In Nesbeth , police officers encountered Mr. Nesbeth holding a knapsack in a stairwell and asked him what he was doing. In response, Mr. Nesbeth cursed, turned and ran. Police chased him and, during the course of that chase, Mr. Nesbeth threw the knapsack to the ground. The police caught up to Mr.

Nesbeth, tackled him and placed him under arrest. The knapsack was located by the police and found to contain a significant quantity of cocaine. Rosenberg J.A. found the accused had no reasonable expectation of privacy in the knapsack because he had divested himself of possession and control when he threw the knapsack away. When Mr. Nesbeth abandoned the bag, he gave up the ability to regulate access to it.

[38] I find the conclusion of the Ontario Court of Appeal in B.(L.) and Nesbeth persuasive. I note that this conclusion was alsoaccepted by the British Columbia Supreme Court in R v Hendrickson, 2018 BCSC 288. In my opinion, by denying any connection to theduffle bag, Mr. Veilleux cannot now argue that he had a privacy interest in that same bag. Simply put, on July 21, 2019, Mr. Veilleuxclearly disassociated himself from the duffle bag located in the car he was driving. As such, I find that Mr. Veilleux is now precludedfrom claiming that his privacy interests were breached when Cst.

Benitez opened that bag and looked inside. [39] However, this conclusion does not end the enquiry. I find that Mr. Veilleux had a general privacy interest in the motor vehiclethat he was operating, irrespective of whether or not he owned that vehicle. See: R v Belnavis (1996), (ON CA), 29OR (3d) 321 (Ont CA). See also R v Ahmed, 2019 SKCA 47. In my view, Mr. Veilleux’s statement that he did not own the car – that hiswife did - does not act as a waiver with respect to his privacy interests in the car itself. When Mr.

Veilleux was asked who owned theduffle bag, he responded by staying, “I don’t know - it’s not my car”. The implication being that Mr. Veilleux was disavowing anyownership of or connection to the duffle bag. Although subtle – there is an important distinction between the car itself and contents ofthe car. Simply put, while Mr. Veilleux may have waived his privacy interests in the duffle bag, I find the same cannot be said for thecar itself. I find that Mr. Veilleux had a continuing and general privacy interest in the car. [40] To look inside the duffle bag required Cst. Benitez to reach into Mr.

Veilleux’s car and remove the bag. This action involvedthe search of the motor vehicle because, by removing the bag, anything hidden by its presence would have been exposed to view.Although a small part of the transaction, the act of reaching into Mr. Veilleux’s car and removing the duffle bag amounted to anunreasonable search of the car. [41] While I find that Mr. Veilleux is precluded from claiming a privacy interest in the contents of the duffle bag, I do not find thathe is precluded from claiming a privacy breach when Cst. Benitez reached into the car and removed the bag. Cst.

Benitez did not obtainconsent to search the car and, as noted, he did not remove the duffle bag from the car for safety reasons. Thus, I find the act of removingsomething from Mr. Veilleux’s car was not authorized by law. Cst. Benitez’s actions amounted to an unreasonable search. What remedy, if any, ought to be granted pursuant to s.24(2) of the Charter? [42] Having found that Cst. Benitez’s conduct violated Mr.

Veilleux’s rights contained in s. 8 of the Charter, I must examine thecircumstances to determine whether the administration of justice would be brought into disrepute by the admission of the evidenceseized. See: R v Le, 2019 SCC 34 at para 139, 375 CCC (3d) 431 [Le]. In this case, the evidence includes a sawed-off shotgun andammunition. [43] The structure of a s.24(2) analysis was described by the Court in Grant. The analysis is conducted by examining three factorsand then balancing those factors to determine whether the interests of justice would be better served by admitting or excluding theevidence.

The factors include: 1) the seriousness of the Charter-infringing conduct; 2) the impact of the breach on the Charter protectedinterests of the accused; and 3) society’s interest in the adjudication of the merits of the case. [44] However, I find that I am not able to complete this analysis without further submissions from counsel.

Although not raised inhis Charter notice, I note that another possible Charter breach may have occurred and the occurrence of such a breach may be relevantto my balancing of the Grant factors. [45] In R v Suberu, 2009 SCC 33, 245 CCC (3d) 112, the court held that, when exercising a common law investigative detention,police must provide the right to counsel. See: Suberu at paras. 40-42. In the present case, Mr. Veilleux was not advised of his right tocounsel until he was arrested and he was not arrested until after the duffle bag was removed from the car, opened and the firearm wasobserved.

There is no dispute that Mr. Veilleux was not detained when Cst. Benitez first approached his vehicle. However, the tenor ofthe interaction changed soon after they began talking. Cst. Benitez became suspicious that Mr. Veilleux may have had some involvementwith the alarm call he was investigating and the officer told him so. At this point, Cst. Benitez intended to detain Mr. Veilleux and areasonable person in the position of the accused would have accepted that he was not free to leave at that point. [46] On these facts, I find that the detention began when the officer asked Mr. Veilleux about the duffle bag. Mr.

Veilleux was notadvised of his right to counsel at that point in time. Rather, he was only advised of his right to counsel when he was arrested – a fewmoments later - and then only because of the decision to arrest him. On these facts, it is not apparent that Cst. Benitez was aware of theobligation to provide the right to counsel to a suspect at the outset of an investigative detention. It certainly did not happen in Mr.Veilleux’s case.

[ 47 ] Because a potential s.10(

b) breach was not part of Mr. Veilleux’s Charter application, the occurrence of such a breach was not independently argued nor was the significance of such a breach argued by counsel in their submissions with respect to the s.24(2) analysis regarding the s.8 breach. CONCLUSION [ 48 ] For the foregoing reasons, I invite submissions from counsel on the following questions: 1. Was there a breach of Mr. Veilleux’s s.10(

b) rights and, if so, is the Court permitted to consider this breach as an independent ground? If there was a breach of Mr. Veilleux’s s.10(

b) rights, what remedy should be granted? 2. Even if the Court is not permitted to consider the s.10(

b) breach as an independent ground, what impact if any does the failure to advise Mr. Veilleux of his right to counsel have on the s.24(2) analysis for the s.8 breach which has been found by the Court? Dated this 16th day of April, A.D. 2021, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J